CIHM 
Microfiche 
Series 
(l\/lonographs) 


ICIMH 

Collection  de 
microfiches 
(monographies) 


Canadian  Institute  for  Historical  Microraproductions  /  Institut  Canadian  de  microraproductions  historiquas 


Technical  and  Bibliographic  NotM  /  NotM  tachniquM  et  btblioflraphiquet 


The  Institute  ha*  attempted  to  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any 
of  the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming,  are 
checked  below. 


L'Institut  a  microfilm*  le  meilleur  exemplaire  qu'il 
lui  a  M  possible  de  se  procurer.  Les  details  de  cat 
exemplaire  qui  sont  peut4tre  uniques  du  point  de  vue 
bibliographique,  qui  peuvent  modifier  une  image 
reproduite.  ou  qui  peuvent  exiger  une  modification 
dans  la  mithode  normale  de  f  ilmage  sont  indiqu^ 
ci-dessous. 


i/ 


Coloured  covers/ 
Couverture  de  couleur 


^  Covers  damaged/ 

'  Couverture  endommagie 


D 
D 
D 
D 
D 
D 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  ct/ou  pelliculie 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Caites  giographiques  en  couleu' 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Relie  avec  d'autres  documents 


□  Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serrie  peut  causer  de  I'ombre  ou  de  la 
distorsion  le  long  de  la  marge  interieure 

□  Blank  leaves  added  during  restoration  may  appear 
within  the  text.  Whenever  possible,  these  have 
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II  se  peut  que  certaines  pages  blanches  aiouttes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  etait  possible,  ces  pages  n'ont 
pas  ete  filmees. 


□  Coloured  pages/ 
Pages  de  couleur 

0  Pages  damaged/ 
Pages  endommagies 

□  Pages  restored  and/or  laminater* ' 
Pages  restauries  et/ou  pellicula  >  - 

H  Pages  discoloured,  stained  or  fox;  ■ 
Pages  decolories,  tacheties  ou  pique. 

□  Pages  detached/ 
Pages  ditachies 

QShowthrough/ 
Transparence 

I       I  Quality  of  print  varies/ 


n 


Qualite  inigale  de  I'impression 

Continuous  pagination/ 
Pagmation  continue 


□  Includes  index(es)/ 
Comprend  un  (des)  index 


Title  on  header  taken  from:  / 
Le  titre  de  I'en-tCte  provient; 


□  Title  page  of  issue 
Page  de  titre  de  la 

n  Caption  of  issue/ 
Titre  de  depart  de  la 

n 


livraison 


llvraison 


Masthead/ 

Generique  (periodiques)  de  la  livraison 


0  Additional  comments:/     Pagination  is  as  follows:  p.  1104]  -123. 348-351.,  Pages  wliolly  or  partiiHy  obKured  by 
Commentaires  supplementa.res:       ""»•  »«*»' ««""-  «»«•• "-  "••"  '^'""•''  ^°  •"«'•  *'  ^  •"""•"'  ""'^- 


This  Item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  fllme  au  taux  de  reduction  indique  ci-dessous. 

^0X  14X  18X 


22X 


26  X 


»X 


12X 


16X 


20X 


/ 


24  X 


28  X 


32  X 


Th«  copy  filmed  hare  ha*  baan  raproducad  thanks 
to  tha  ganerotity  of: 

Thomas  FMwr  Rare  Book  Library, 
Univanity  of  Toronto  Library 


L'axamplaira  fiimA  fut  raproduit  grica  i  la 
gAntfOsit*  da: 

Thomas  Fishar  Hvm  Book  Library, 
Univarsity  of  Toronto  Library 


Tha  images  appearing  hare  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Las  images  suivantes  ont  §tt  raproduites  avac  la 
plus  grand  soin,  compta  tenu  de  la  condition  at 
de  la  nettet*  de  i'exemplaire  film*,  at  en 
conformity  avac  las  conditions  du  contrat  da 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couvarture  en 
papier  est  imprimte  sont  filmte  en  commen9ant 
par  la  premier  plat  at  en  terminant  soit  par  la 
darniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration.  soit  par  la  second 
plat,  salon  le  cas.  Tous  las  autras  exemplaires 
originaux  sont  filmte  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  at  en  terminant  par 
la  darniAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  —^(meaning  "CON- 
TINUED"), or  tha  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparaltra  sur  la 
darniire  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  — »>  signifie  "A  SUIVRE  ".  le 
symbols  ▼  signifie  "FIN  ". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartas,  planches,  tableaux,  etc..  peuvent  Atre 
filmte  A  des  taux  de  rMuction  difftrents. 
Lorsque  le  document  est  trop  grand  pour  Atra 
raproduit  en  un  seul  cliche,  il  est  film*  A  partir 
de  I'angle  supArieur  gauche,  de  gauche  i  droite. 
et  de  haut  an  bas.  en  prenant  le  nombre 
d'imagas  nicessaira.  Las  diagrammes  suivants 
illustrant  la  m^thoda. 


1  2  3 


1 

2 

3 

4 

5 

6 

MICROCOPY   RtSOWTION   TBT  CMART 

(ANSI  and  ISO  TEST  CHART  No.  2) 


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^^  16^3  East   Main  Street 

T'.f  Rocf^estef.   New  York         1460J       USA 

'^SS  (716)   482  ~  0300  -  Phone 

SE  (^'6)   2S8-  5989  -Fan 


WOTHKR  SIPRKMI-:  ((^IKI 


Willi    AlMMVDlV    \i 


WII.l.'  \\l    kl WVK  k    kIKIil  1,1 


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MIllNM      lll^l'l    II 


tu 


With  the  Compliments  of 

Wiu.iAM  Rknwkk  Riddelt.. 


«.sr-:.ro.'M,-.^^  —  s«^ .,  ;..^ 


ANOTHER  SUPREME  COURT 

WILLIAM  RENWICK  RIDDELL 

eleven  hrnidrcdmifallfvf^  C'om  which  I  come), 

leave  Toronto  at  noon  Id  I^^T,  .""'''■  '  ™"'<' 
nation  two  days  ttw^  %'™''''!  ""^'  "'  ""^ '^"■ 
"coming  .11  the  wav»™,T  . '  j'™  5""  '^  about 
Washing,  faa"!L7!°'*"«""  '^^''<'-.  as  well  as 
At  tte  tat  m«^"  rf  ThT^""'  '"'""='=• 

pheusHeno-Snow  ZLtt,^!:r  ""°'  ^^  '"■ 
velopment  of  the  A™.  •     '"'"^'"S  Paperon  the  "De- 

Co4  over  sttes^  ^L.".""'!"'  »'  J'-Mction  of 
-ev.  that  the  SSne'i'.ri-l^ttr^S 


RIDDELL 


XO5 


composing  the  English  Empire  .  .  .  ought  to  be  m 
charge  of  a  specially  constituted  tribunal  fitted  by  train- 
ing to  act  judicially  where  the  judicial  method  was  ap- 
plicable;" and  he  pointed  out  that  that  tribunal  was  the 
King-in-Council.  That  tribunal  still  exists  and  flour- 
ishes in  full  vigour,  and  it  is  that  tribunal  which  I  call 
"Another  Supreme  Court." 

II  is  not  intended  here  to  reiterate  what  has  been  so 
well  stated  in  Mr.  Snow's  address  but  rather  to  supple- 
ment it:  nor  shall  I  go  largely  into  the  history  of  this 
tribunal.  All  who  are  interested  will  find  its  history 
traced  in  an  address  before  the  Missouri  Bar  Associa- 
tion in  1909,  published  in  the  American  Law  Review  for 
1910,  pp.  161-176. 

Confining  my  remarks  in  great  measure  to  the  pres- 
ent and  the  recent,  the  first  thing  that  .s  to  be  said  is 
that  this"Court"  is  not  a  court  at  aU.  The  Judicial  Com- 
mitter of  the  Privy  Council  is  simply  a  committee  for 
spt-ial  purposes  of  the  Privy  Council  of  the  King. 

In  .eory  the  King  is  the  fountain  of  all  justice  through- 
out his  dominions,  and  from  time  immemorial  he  has  exer- 
cised jurisdic  -on  in  his  Council  which  acts  in  an  advisory 
capacity  to  the  Crown.  In  theory  also  every  subject 
has  the  right  to  submit  his  grievances  to  the  King— "to 
seek  the  foot  of  the  throne."  Petitions  of  that  nature 
which  came  before  the  King  were  after  the  development 
of  Pariiament  referred  in  most  part  to  Pariiament  which 
thus  became  the  chief  appellate  tribunal.  From  early 
in  the  fourteenth  century  Receivers  and  Triers  of  pe- 
titions were  appoi.ited  to  relieve  Pariiament  of  clerical 
and  routine  work  and  to  aid  in  the  administration  of 


106 


J^ICIAI  SSTTLElttKT 


justice.    These 
^"t  the  Council  w;^ 

"^a  not  conceive  of  it- 


KIDDELI. 


107 


self  as  beiug  of  statutory  origin.  Moreover,  the  Privy 
Council  also  continued  at  times  and  in  certain  cases, 
e.g.,  in  cases  of  riot,  to  act  outside  of  the  Star  Chamber 
and  as  the  Priv>-  Council  had  acted  before  the  Statute. 
Whether  the  'Court  of  Star  Chamber'  was  a  Court 
appears  within  a  few  years  after  the  nassage  of  the  Act 
to  have  been  questioned  by  the  Common  Law  Judges; 
the  great  authority  of  Coke  is  that  the  judgment  of 
these  judges  was  'a  sudden  opinion.' " 

The  court  fell  into  disi. .  Mte  in  the  '  \o:  and  Stewart 
times  and  it  was  abolished  in  1640  by  Statute  16  Car. 
j^  (._  10— but  this  Statute  in  no  way  artected  the  exist- 
ing right  and  duty  of  the  Cov^cil  to  hear  appeals  from 
English  territory  t  •    'hich  th.   1  ommon  Law  writ  did 

not  run. 

In  1667  a  Committee  of  the  Privy  Council  was  formed 
to  hear  such  appeals,  a  Judicial  Committee,  and  such 
a  Committee  has  continued  to  the  present  day.    There 
has  been  legislation  more  than  once  but  no  change  has 
been  made  in  the  status  of  the  Judicial  Committee.    The 
members  of  the  Committee  are  gentlemen  who  are  mem- 
bers of  the  King's  Privy  Council  and  who  are  associ- 
ated together  for  the  purpose  of  listening  to  petitions 
from  a  private  individual,       corporation,  a  Province, 
complaining  of  wrong.    They  are  to  advise  His  Majesty 
what  he  should  do  in  the  matter,  but  they  are  not  Judges. 
They  have  of  course  the  same  power  as  any  Court  to 
rectify  mistakes  which  have  crept  in  by  misprision  or 
otherwise  in  embodying  tlieir  judgmer..:  Rajunderna- 
rain  vs.  Sing  (1836)  7  Moore  P.  C.  117. 

This  body  of  gentlemen  sits  in  a  dull  old  room  in  a 


JTOlCIAt  SETTLEMENT 

raised—here  a-  j  'J"°""")    One  end  of  .1,. 

™«  are  all  dofte^t  ,1  „  ""  ^'"r.    X^^f 
Wack  clottes,  gown,  Sg  td  „7"'™^  ^Sl"-*  «Jte 

P«'te  the  end  of  the  table  a  „v  ,.  Y™'"  =<ands  op. 
Comnuttee  are  sittinr  p,f  '•'''  ""«  """bers  of  th. 
J"*e  -  "your  loX^^^f r!?  '-"  ^-^•-) 

^t^Soted-'-^-^nrxir-' 

•"lat  reminds  me  nf 
Zr""  "^-^  "^fo-  tte  W^v*^"  "^^-^  When  I 


RIDDELL 


109 


from  your  Lordship's  remarks  in  the  argument  of  such  and 
such  a  case."  He  asked,  "Did  I  say  that?"  I  answered, 
"I  have  the  shorthand  notes  before  me,  and  your  Lordship 
is  made  to  say  that."  He  said,  "If  I  said  that,  with  very 
great  respect  for  myseU,  I  think  I  was  wrong." 

The  present  constitution  of  the  Privy  CouncU  as  a 
whole  is  not  of  much  hnportance.  It  is  never  caUed 
together  except  in  case  of  the  demise  of  the  Crown.  Par- 
liament has,  however,  taken  into  its  own  hands  the  con- 
stitution of  the  Judicial  Committee.  The  Committee 
was  formerly  constituted  by  the  Privy  CouncU  itself 
but  that  practice  no  longer  obtains. 

At  the  present  time  the  Judicial  Committee  consists 
of  the  Lord  Chancellor,  the  Lord  President  of  the  Coun- 
cU, aU  ex-Lords  President,  six  Lords  of  Appeal  in  Ordi- 
nary, those  members  of  the  Privy  CouncU  who  have 
held  high  judicial  office  (Lord  ChanceUor,  member  of 
the  Judicial  Committee,  Lord  of  Appeal  in  Ordinary 
or  Judge  of  a  Superior  Court  in  England,  Ireland  or  Scot- 
land) and  seven  from  the  Dominions  overseas. 

The  present  ChanceUor  is  Lord  Buckmaster  (at  least 
he  was  yesterday;  I  do  not  know  whether  he  is  to-day), 
long  an  active  and  successful  practitioner  at  the  English 
Bar.  He  was  SoUcitor  General  on  the  resignation  of 
Lord  Haldane  :n  1915,  and  on  Sir  John  Simon  the  Attor- 
ney General  deciding  to  accept  the  Woolsack  (as  he 
preferred  to  remain  in  the  House  of  Commons  and 
active  politics)  Buckmaster  received  the  prize  of  the 

profession. 

Former  Lords  ChanceUors  are  the  Earl  of  Halsbury, 
over  ninety-one  years  of  age,  but  stUl  vigorous  physi- 


no 


JW>rciAI  SETTLEMENT 


P^ty,  as  charming  a  comn^^.  *°  '^'  Gladstonian 
«  accomplished  as'a  la^^r^""  ^'^"^'^  ^^P-^)  as  h^ 
f°d  metaphysical  Viscou^H^M       '  "  ^^°  ^he  acute 
--s  remember  with  Stt  t^  "'°"  ^^^  ^m-! 
Bar  Association  i„  Montreal  a  f^'''"«'^^  American 
come  the  Scot,  Andrew  G  S'J^''  ^'"'^  "^°-    Then 
sometime  Lord  Advocate  andThe^T"'!'  ''''^  ^""-^^ 
of  Scotland,  the  Irishman  71     r    ^°'^  J^^^'^e  Genera 
he  brilliant  Attorney^J^f'  ^/^^^-n,  formSy 
Wd  Shaw  of  DunferniH^ T       '  ^"^^^^^  another  Scof 
^ord  Advocate  for  S^!?-^^  Solicitor  Gene^l^ 

unworthy  successors  of^ds  w^?'  '^"  '^"^^'"^^  «e  no 
no^more.  "^"^^^^  Watson  and  Robertson  now 

L^f  f^" -^^^^^  -  power  in 

^ord  Justice   Fletcher  Moulton     "     ^'"^^  ^"°^  as 
accurate  scientific  knowS  Df  \"""  "'  ^^'  and 

ferdT^  ^  ^-^-^  and'^TRls^"^^^  °^  ^- 

aen  Lord  Parker,  who  came  to  thl'r-'    "^"""^  °e«- 

years'  experience  as  a  TuZ    f  I     ^°""^"  ^^^er  seven 

^<^e,  and  Lord  Sumner-^^^  hld'^  f^^  ^^^^  of  jZ 
P«"ence  on  the  Bench  Tj^  ''"^^^  '^'^  years'  ex- 

-  ecclesiastical  matte';    Lord  W™'-"  '"^^^  ""^^ 
Buckley  ^as  an  authori  y  on  ^  ^'"^"^  ^^^o  as  Mr. 
none  of  his  repute  when  i^K      ^°°^Pany  Law  and  lost 
Justice  Buckley,  and  sTr  Z^^^L'''-{^^'-^  andVo^rd 
^^  ftgh  Court  of  Justice^eretf  f  '^"  ^^""^  ^-'- 

^nere  are  other  British  mem- 


RIDDELL 


III 


bers  ex  officio  whom  I  do  not  wait  to  name;  they  seldom 
if  ever  take  part  in  the  hearing  and  decision  of  appeals. 
Let  us  leave  now  the  list  from  the  Mother  Country 
and  see  who  come  from  across  the  seas.    We  find  Sir 
Samuel  Griffith,  Chief  Justice  from  Australia,  Sir  Edmund 
Barton    also   from   Australia,  Sir  Charles  Fitzpatrick, 
Chief  Justice  of  Canada,  Sir  James  Rose-Innes,  Chief 
Justice   of   South   Africa   and    Sir    Lawrence    Jenkins 
formerly  a  Chief  Justice  in  Lidia.    But  the  list  is  not 
exhausted;  Syed  Ameer  Ali,  a  Mohammedan  claiming 
to  be  a  Syed  in  fact,  that  is,  a  descendent  from  Mohammed 
and  glorying  in  his  faith  and  race,  has  been  for  many 
years  a  member  of  the  Committee. 

"When  there  is  an  Ecclesiastical  appeal,  Archbishops 
and  Bishops  also  sit— as  ecclesiastical  assessors;  in  the 
rare  case  of  an  appeal  from  beyond  the  seas  in  an  admi- 
ralty matter,  Admirals  or  other  naval  officers  sit  as  naval 
assessors.    For  example  in  the  well-known  case.  Read 
vs.  Bishop  of  Lincohi  (1892,  A.  C.  644)  the  Bishops  of 
Chichester,  St.  Davids  and  Lichfield  sat;  and  in  a  case 
from  his  Majesty's  Supreme  Court  for  China  and  Corea 
in  1908  (A.  C.  251)  Admiral  Lloyd  and   Conamander 
Cabome." 
What  are  the  functions  of  this  extraordinary  body? 
"At  the  present  time  this  Judicial  Committee  hears 
appeals  in  English  cases  only  in  Ecclesiastical  matters. 
Upon  every  appeal  of  this  character,  at  least  three  Bish- 
ops must  sit  as  assessors,  under  the  provisions  of  a  rule 
made  in  1876.   The  ultimate  appeal  in  other  matters  from 
England  goes  to  the  House  of  Lords.    In  Scottish  and 
Irish  matters  the  Committee  does  not  exercise  any  appel- 


«w« 


•»».W  f!*.'.! 


JLI.LUW 


iL^MLi::  f  ,^;nm^!.yi 


iia 


JTOICIAI,  SETTLEMENT 


peals.    Li  Eurone   from  11    A^  ^  '■^'  '^^'^e  ap- 

in  Africa  from  the  Cap«  of  cLwxf  ^'^'^  ^^P^^^' 
vaal,  the  former  Fr^  L?^  .?°P^' ^^'^' ^he  Trans- 

land,  Bechuanaland,  the  Fa^J^  t'"'  ^'^'''  ^''''*'^ 
Gambia,  Griqualand  aid  o^^and^  '  ^'""^^"^' 
iMown;  in  Asia  from  p  T  5  '^^'  °'°'"*  °^less  un- 
N.  W/Xerrtto^  Adef  r  y'  ^^^^"«^'  Madras,  the 
Upper  and  W^^  '^''"'  ,^«^"<^Wstan,  Burmah, 
Hong  Kong.  fiTrL  l1'  ^""J""^'  Ceylon,  Mauritius 

New  Guinf;  FijT  Netlr'  1?  ^T^'^'^'  ^"^^^^>- 
Islands  and  in  A^;rkrfrfrr'/'^°"'  and  Pitcairn 
Ontario,  Quebec  NolVr.^x.'^^  ^""^  ^"^  Pro^ces- 

ish  Columbia  and  wJ''^^^^^  ^^^^^^  Brit- 
Bahamas,  tmakf  B^^^sh  I  T"""''  ^'"""'^'  ^^ 
in  South  Lerica  Ld  l^^""^"''!'  ^^  ^^°™  Guiana 
lying  in  that  Cr^ibe"  8^"  "°*'"  ^"^^^^  ^^^-<* 

mu!?;etwete^"";p"r  f"^™'"^  -"-"-ties 
English-speST?,;,^!  mS'L^^^^^^^  ^^"  <>^  ^^^ 
in  Quebec  the  Coutume  1  P  u^  ^°'"^  ^^^^^^^^^ 

tion,  the  many  CC^H  -""'^  '^°^'^  "^^^'fi^^" 
East  Indian  p^lpks  S  ^  '^°"'  '^'  ^^  *^"  "^^ 
of  Africa,  the^m  I't  T  ^""''^  ^'^  °^  '^'  South 
an^ore  com  ^efr^^^^^ 

-oment  and  the  most  far  reach^g  cWactel;'^  ''"'"' 


RIDDELL 


"3 


I  do  no  lowever  dwell  upon  i  vate  litigation.  No 
small  part  of  the  labors  of  the  Judicial  Committee  has 
been  the  decision  of  what  in  the  United  States  are  called 
constitutional  questions  The  word  "constitutional" 
has  not  the  same  connotation  with  us  as  with  you.  In 
the  American  sense  "constitutional"  means  in  accord 
with  thp  written  "constitution."  With  us  it  means  in 
accord  with  the  more  or  less  vague  principles  upon  which 
we  conceive  government  should  be  carried  on.  With  you 
\  hat  is  imconstitutional  is  illegal  however  just  and  laud- 
able it  may  be,  with  us  that  is  unconstitutional  which 
is  wrong  however  legal  it  may  be. 

It  was  decided  in  re  Bedard  (1849)  7  Moore  P.  C.  23, 
that  the  Governor  of  a  Colony  like  Canada  represented 
Her  Majesty  and  had  power  (e.g.,)  to  grant  a  patent  of 
precedence  to  a  uewly  appointed  judge.    But  the  power 
of  a  Colonial  Governor  in  Council  must  he  exercised  in 
(substantially)  the  proper  and  regular  way.    Sometimes 
a  Judge  has  been  "amoved"  by  the  Colonial  authorities 
and  reinstated  by  the  Judicial  Committee  because  un- 
justly treated  by  being  deprived  of  a  right  to  be  heard. 
Sometimes  in  such  a  case  the  "amotion"  has  been  sus- 
tained.    In  Montague  vs.  Lieutenant  Governor  Van 
Dieman's  Land  (1849)  6  Moore  P.  C.  489,  the  Judge  was 
called  on  to  show  cause  against  an  order  for  suspension 
only  and  he  was  amoved.    The  Committee  held  that 
the  irregularity  did  not  prejudice  him  anv2  sustained  the 
order  of  am-.tion.   I  shudder  to  think  wha.  would  happen 
if  an  Ar^erican  Court  were  to  decide  the  same  way. 

There  are  very  many  cases  dealing  with  the  power  of 
a  Colonial  Parliairent  to  punish  for  contempt.    A  com- 


mam 


114 


JUDICIAL  SETTLEMEMT 


into  contempt  is  inh^^l  •  ^  ™^  "'  authority 
authorityTI^^Tv  ."T^  ^"P^"'^  '^^^^^-t^ve 
Ban.ttTx836)?S:^.er^^^--  -  Beaumont  vs. 

Cot"  i^d^r  cXiiii^r"  ^^  '^"^  ^"^^^  ^^^  ^^-- 

af  the  limits  of  krist^^^^^^^  '°"^.^*""^^  "^^^  ^  question 
and  such  cas^'  'Z^^l  '^^^'J^'  ^^^  ^""^-^ 
with  great  frequenL^  ^^  ^^°'^  *^^  Committee 

-quirf^edSSomTc:^'  T  ''""^^^^  "^^^ 
In-perial  Parliament   .«  f  °  ^^"^  P^^^'"^  °^  the 

Hoiloway  (x"'  )TmL  P  ?T'  ?  ^  ^^™  - 
a  demise  of  the  Cro^T         /^°'  ""^"'^  *^^  ^^^^^^  of 
But  in  Z  "^"^^  ""^^^  consideration 

fa  the  ambi.  o]^,  J1S  ;^i^  ;-»r^' ""ta-^  "il.- 
sense  an  aeent  nr  ,j^i      f      ""^  ^°^  '^    is  not  m  any 

presaiDtd,    The  Dominion  Parliament  has  "Crim- 


RIDDELL 


"S 


L. 

O- 

a- 
le 
)- 

y 

e 


inal  law"  for  one  of  its  objects  but  that  does  not  enable 
it  to  make  into  a  crime  an  act  committed  outside  of  the 
Dominion  as  the  Imperial  Parliament  could,  Rex  vs. 
Brinkley  (1907)  14  O.  L.  R.  434- 

I  heard  stated  this  morning  something  that  startled 
me  more  than  anything  else  in  the  whole  course  of  my 
legal  career,  namely,  that  the  Judicia.  Committee  of 
the  Privy  Council  has  been  declaring  certain  laws  passed 
by  local  legislatures  void  as  against  justice  and  common 
right.  I  have  been  practicing  law  a  great  many  years, 
and  I  have  never  found  such  a  case. 

What  the  Judicial  Committee  of  the  Privy  Council 
does  is  this.  It  locks  at  the  Imperial  statute  by  which 
the  local  legislature  is  formed.  It  j&nds  out  the  powers 
which  are  given  by  tb.*t  statute,  and  if  any  powers  in 
that  statute  are  exercised,  the  Judicial  Committee  never 
considers  whether  such  exercise  is  just  or  right  or  honest. 
I  shall  give  you  an  example. 

Not  so  very  long  ago,  before  I  went  in  the  Appellate 
Division,  and  was  sitting  on  the  trial  bench,  I  had  oc- 
casion to  try  a  case,  the  Florence  Mining  Company  vs. 
Cobalt.  The  Florence  Mining  Company  claimed  the 
ownership  of  certain  mining  lands.  The  Parliament  of 
Ontario,  the  Legislative  Assembly— we  have  only  one 
House  there,  and  that  is  enough  for  us;  we  are  too  busy 
up  in  Ontario,  and  too  poor,  to  be  bothered  with  two 
Houses.  I  may  say  that  in  seven  out  of  nine  provinces 
in  Canada  they  have  only  one  House,  two  of  the  provinces 
still  retaining  their  two  Houses;  but  we  in  Ontario  cannot 
be  bothered  with  two,  as  I  said. 
Well,  the  legislature  of  the  Province  of  Ontario  passed 


t  itfiiiiii ' "  '  :^a»^=-»^.-" 


n 


zi6 


JUDICIAL  SETTLEMENT 


an  Act  saying  that  the  land  should  belong  to  the  Cobalt 
Mining  Company,  mentioning  the  particular  land.    The 
action  was  brought  by  the  Florence  Mining  Company 
against  the  Cobalt  Company,  and  tried  before  myself. 
I  went  into  the  facts  fully,  tried  out  the  facts  in  the  sense 
of  hearing  aU  the  facts.    I  thought  it  fairly  weii  proved 
that  the  land  was  the  property  of  the  plaintiffs  origi- 
naUy  and  before  that  Act.    But  I  decided  that  the  prohi- 
bition, "Thou  Shalt  not  steal"  does  not  extend  to  the 
sovereign  'egislature,  and  I  said  so  in  just  those  blank, 
bald,  words.    I  decided  that  the  legislature  had  the  right 
and  power  of  taking  that  property,  even  if  admittedly  of 
A,  and  saying  that  it  should  be  the  property  of  B. 

Now,  a  more  gross  thing  than  that,  absolutely  against 
aU  common  right,  nobody  could  think  of,  nobody  could 
conceive  of.  I  refused  to  pass  upon  the  facts;  I  said, 
"I  shall  assume  the  plaintiffs  have  proved  their  case.  I 
shall  decide  this  upon  the  constitutional  question." 
It  went  to  the  Court  of  Appeal;  the  Court  of  Appeal 
went  into  the  facts  very  fully  and  decided  against  the 
plaintiffs  on  the  facts,  but  at  the  same  time  the  Court  of 
Appeal  said  that  the  law  constitutionally  laid  down  by 
the  learned  trial  judge  was  unexcep^'onal  and  perfectV 
good  law. 

That  went  to  the  Privy  Council,  and  the  Privy  Council 
upheld  this  decision  on  both  grounds.  They  said  that 
even  if  the  plaintiffs  had  proved  their  case  the  legisla- 
ture of  the  Province  of  Ontario  had  the  power  to  take 
away  the  property  of  one  person  and  give  it  to  another. 

What  the  Judicial  Committee  has  done  (I  venture  to 
think),  in  all  those  cases  to  which  my  friend  has  alluded, 


KIDDELL 


1x7 


has  been  to  go  carefully  into  the  Acts  of  the  legislatuitj; 
that  they  have  gone  into  the  charter  of  the  Province,  if 
you  please  to  use  that  terminology,  and  have  investigated 
what  power  that  charter  has  given  to  the  legislature. 
They  have  decided  in  more  than  one  case,  no  matter  how 
small  a  legislature  it  may  be,  even  of  the  smallest  British 
island  in  the  world,  that  so  long  as  the  legislature  is  act- 
ing within  the  ambit,  within  the  four  comers  of  the  power 
which  is  given  to  it  by  the  Imperial  House,  they  have 
the  power  to  do  as  they  please,  steal,  or  anything  else 
they  see  fit. 

In  our  system  it  is  the  people  who  are  the  ultimate 
court  of  appeal.  If  the  Government  did  any  stealing 
the  matter  would  come  before  the  people  at  the  next 
election,  and  if  the  people  wanted  a  government  that 
stole,  I  suppose  the  people  would  return  the  government 
at  the  next  election.  But  it  is  highly  probable  that  if 
the  government  did  anything  of  that  kind,  there  would 
be  such  a  cry  raised  that  it  would  not  be  continued.  I 
want  you  to  understand  that  we  are  not  a  larcenous 
people  naturally. 

It  is  at  once  manifest  the  very  large  number  of  cases 
which  involve  the  extent  of  the  powers  of  the  Colo- 
nial Legislature.  In  Canada  the  question  has  been  for 
nearly  half  a  century  complicated  by  the  division  of 
legislative  power  between  Dominion  and  Provinces. 
The  British  North  America  Act  of  1867,  sometimes  called 
the  written  constitution  of  Canada,  sets  out  fully  the 
objects  of  legislation  of  Dominion  and  Province  respec- 
tively. The  judicial  interpretation  of  this  Act  has  called 
out  the  greatest  ingenuity  and  learning  from  the  Com- 


■■■^JOSmsSKtimkUmmtt  m  unsttmM'v 


zi8 


JUDICIAL  SETTLEMENT 


mittee  and  Counsel,  and  the  end  is  by  no  means  yet. 
The  same  sort  of  dispute  may  be  expected  in  Australia 
now  federated. 

In  addition  to  determining  whether  this  or  that  legis- 
Ution  is  intra  or  ultra  vires  ("constitutional"  or  "uncon- 
stitutional" in  the  American  terminology)  questions  have 
ansen  more  like  disputes  between  States. 

In  the  British  North  America  Act  in  addition  to  the 
division  of  legislative  functions,  there  is  a  division  of 
property  between  Dominion  and  Province-and  it  must 
be  remembered  that  a  gift  of  legislative  power  concern- 
m  any  property  is  not  a  gift  of  the  property  itself. 
Attorney-General  (Dominion)  vs.  Attorney-General  (Pro- 
vmce)  1898,  A.  C.  700,  at  pp.  709-711. 

Many  disputes  concerning  property  have  come  before 
the  Judicial  Committee  and  it  has  always  been  considered 
that  such  disputes  are  to  be  decided  on  a  rule  or  principle 
of  law  and  not  on  what  might  be  thought  fair.  Domin- 
ion of  Canada  vs.  Province  of  Ontario,  (1910)  A  C  637 
The  Judicial  Committee  decides  the  law;  it  has  no  hesi- 
tation, if  necessary,  in  changing  its  action.  It  has  said 
in  at  least  two  cases  that,  "What  we  said  on  such  an 
occasion  is  not  law;  we  were  mistaken.  The  law  is  so 
and  so"  and  they  decide  the  law. 

The  Committee  has  been  called  on  to  decide  the  owner- 
ship of  real  estate  of  which  the  owner  died  without  leav- 
mg  heirs  and  without  a  will.  This  was  aUotted  to  the 
Provmce  not  to  the  Dominion,  Attorney  General  Onta- 
no  vs.  Mercer  (1883)  8  A.  C.  767. 

An  interesting  case  arose  under  the  foUowing  circum- 
stances.   In  1763  certain  tribes  of  Indians  were  granted 


KIDDEIX 


"9 


possession  of  certain  lands  as  hunting  grounds  "for  the 
present."  In  1873  the  Indians  surrendered  this  land; 
(we  have  had  no  trouble  with  Indians— no  "H.  H."  can 
write  a  "Century  of  Dishonor"  concerning  Canada) 
and  the  question  arose  who  should  own  it.  The  Judicial 
Conunittee  supported  the  claim  of  the  Province  and 
affirmed  the  decision  of  the  Canadian  Courts — St.  Cath- 
arines Milling  &  Lumber  Co.,  vs.  The  Queen  (1888), 
14  A.  C.  46 — ^the  same  kind  of  question  arose  in  a  later 
case  which  I  do  not  stop  to  discuss.  Attorney  General 
(Dominion)  vs.  Attorney  General  Ontario  (1897)  A.  C.  199. 

British  Columbia  came  into  the  Dominion  in  1871  on 
the  express  bargain  that  the  Canadian  Pacific  Railway 
should  be  built  across  Canada.  The  land  was  owned  by 
the  Province.  The  Province  granted  to  the  Dominion 
lands  20  miles  on  each  side  of  tiie  Canadian  Pacific  Rail- 
way's line,  so  that  the  Dominion  could  give  that  to  the 
Canadian  Pacific  Railroad  as  a  bonus  for  building  the 
road.  It  turned  out  that  there  were  precious  metals  in 
and  imder  part  of  this  land.  The  Dominion  claimed 
them,  but  the  Committee  held  that  precious  metals, 
gold,  and  so  on,  are  not  incidents  of  land  but  belong  to 
the  Crown,  and  therefore  like  other  royalties,  belong  to 
the  Province.  Attorney-General  (B.  C.)  vs.  Attorney- 
General  (Canada)  (1889;  -  »  295.  So  we  have  the 
fact  of  land  solemnly  gra  ;  /y  the  Province  to  the 
Dominion,  but  that  grant  aid  not  carry  the  royalty — 
that  is,  the  precious  metals  which  were  in  and  under 
that  land. 

The  ownership  of  fisheries  and  fishing  rights,  of  rivers 
and  lake  improvements,  and  of  harbours  was  strongly 


SfO 


JX7DICIAL  8STTLE1IENT 


contested  and  was  decided  by  the  Committee,  Attorney 
General  (Dominion)  vs.  Attorney  General  (Provinces) 
(1898)  A.  C.  700. 

Swamp  lands  in  Manitoba  were  a  matter  of  dispu*- 
and  decision,  Attorney  General  (Manitoba)  w.  Attorney 
General  (Canada)  (1904)  A.  C.  199;  the  foreshore  in 
British  Columbia  in  Attorney  General  B.  C.  P.  R.  C.  m. 
1906)  A.  C.  204;  water-rights  in  the  railway  belt  in 
BriUsh  Columbia  in  Burrard  P.  Co.,  etc.  w.  The  King, 
(191 1)  A.  C.  87,  and  fishing  rights  in  the  same  Province 
Attorney  General  (B.  C.)  vs.  Attorney  General  (Canada) 
(1914)  A.  C.  153. 

It  will  be  seen  that  the  curious  situation  has  not  infre- 
quenUy  arisen  of  land  or  other  property  situated  with- 
in a  particular  Province  being  claimed  as  its  own  by  the 
Dominion;  and  indeed  aU  property  in  the  Dominion 
must  be  in  some  Province  or  another  (except  such  as  is 
in  the  Yukon  and  other  non-provincial  territories). 

Since  the  pubUc  property  of  the  whole  of  the  British 
dominion  is  in  the  King,  it  would  seem  odd  that  the  King 
in  one  capacity  would  be  at  law  with  himself  in  another, 
but  there  is  no  practical  difficulty.  When  a  dispute 
arises  we  make  the  Attorney  General  of  the  Dominion 
party  of  the  one  part  and  the  Attorney  General  of  the 
Province  party  of  the  other  part. 

.inother  dispute,  a  dispute  between  two  provinces, 
is  not  unlike  certain  of  the  disputes  which  have  come 
before  the  Supreme  Court  of  the  United  States: 

"By  the  British  North  America  Act  (1867),  the  Prov- 
ince of  Ontario  was  given  the  same  limits  as  the  former 
Province  of  Upper  Canada.    Ontario  always  claimed 


RIDDELL 


lai 


practically  the  whole  district  west  of  Lake  Superior  to 
the  Rocky  Mountains.  She  claimed  originally  up  to  the 
South  Sea,  but  she  Umited  her  claim  ultimately  to  the 
Rocky  Mountains.  And  there  is  a  great  deal  of  authori- 
ty, too,  for  the  supposition  that  the  old  Province  of  Upper 
Canada  went  as  far  west  as  t^-e  Rockies. 

"In  X870  by  the  Dominion  Act,  33  Vic.  c.  3,the  Province 
of  Manitoba  was  formed  with  its  eastern  boundary  at  the 
meridian  of  96"  W.  L.    At  once  mere  "/as  a  movement 
in  Ontario,  the  Government  of  that  Province  claiming 
that  it  went  further  West  than  96'  W.  I    although  this 
had  long  been  considered  in  fact  about  her  western  limit. 
Many  communications  passed  between  the  Governments, 
but  without  result.    Tlicn  in  1876  an  Act  was  passed 
(39  Vict.  c.  21)  extending  the  li-nits  of  Manitoba  to  the 
•westerly  boundary  of  Ontario.'    You  can  see  at  once  that 
trouble  would  arise.    The    Dominion   and    Manitoba 
claimed   that   the   westerly   boundary  was  about  six 
miles  east  of  Port  Arthur,  coming  east  about  where 
Grand  Portage,  Minn.,  is  on  the  shores  of  Lake  Supe- 
rior.   Armed  forces  of  tb^  Provinces  of  Manitoba  and 
Ontario  took  possession  of  Port  Arthur,  but  the  scandal 
was  abated  by  an  agreement  to  arbitrate,  December  18, 
1883,  by  the  Dominion  and  Province.    Ontario  named 
William  Buell  Richards,  Chief  Justice  of  the  Province, 
and  when  he  became  Chief  Justice  of  Canada,  his  succes- 
sor Robert  A.  Harrison,  the  Dominion,  Sir  Francis  Hincks, 
and  the  two  Governments  jointly  Sir  Edward  Thornton 
the  British  Ambassador  at  >\  ashington. 

"These  arbitrators  made,  August  3, 1878,  a  unanimous 
award  in  favoiT  of  the  OnUrio  contention,  which  by  this 


-v^->rtmM&<fe''iBliCii  • 


123 


JUDICIAL  SETTLEMENT 


time  was  in  reality  limited  to  the  generaUy  recognized 
boundary.    This  was  at  once  accepted  by  Ontario,  but 
the  Dominion  refused  to  ratify  the  award.    At  length 
in  1883,  the  two  provinces  concerned  agreed  to  submit 
to  the  Judicial  Committee  of  the  Privy  CouncU  three 
questions  (i)  whether  the  award  was  binding,  as  ti>e 
Dommion  claimed  that  no  government  can  bind  the 
country  to  anything  that  requires  an  act  of  Parliament; 
(2;  If  not,  what  was  the  true  boundary,  and  (3)  what 
legisktion  was  necessary  to  make  the  decision  effectual. 
The  Judiaal  Committee,  August  11, 1884,  decided  (i) 
m  the  absence  of  Dominion  legislation  the  award  was 
not  bmding,  (2)  the  award  laid  down  the  boundary  cor- 
rectly, and  (3)   Imperial  legislation  was  desirable  (with- 
out saying  it  was  necessary). 

"The  Imperial  Act  (1889)  52  and  53  Vic.  c.  28,  carried 
the  decision  into  effect,  and  ended  the  controversy  " 

I  should  like  to  add  here  some  words  of  my  own  with 
which  I  closed  the  address  to  the  Missouri  Bar  Associa- 
tion already  mentioned: 

"There  have  been  occasions  upon  which  suggestions 
have  been  made,  more  or  less  seriously,  that  the  juris- 
diction of  the  Privy  Council  over  self-governing  communi- 
ties, such  as  we  have  in  Canada  and  as  are  in  Australia 
and  New  Zealand,  should  cease.  For  example  when  the 
Supreme  Court  of  Canada  was  established  in  1875  there 
was  considerable  discussion  looking  to  the  abolition  of 
the  nght  to  appeal  to  the  Privy  Council  from  the  Court 
so  estabbshed.  Wiser  counsels  prevailed  and  no  attempt 
was  made  to  prevent  such  appeals  by  legislation.  Now 
an  appeal  lies  as  of  right  from  the  highest  court  in  each 


RIDDELL 


"3 


Province  in  cases  of  sufficient  magnitude  and  also  by 
special  leave  from  the  Supreme  Court  of  the  Dominion. 

"No  feeling  exists  that  this  should  be  altered— occasion- 
ally of  course  the  unsuccessful  party  to  an  appeal,  and 
those  who  sympathise  with  him  make  a  doleful  noise 
against  the  Board  but  this  speedily  dies  out. 

It  is  wholly  beyond  controversy  that  Canadians  gener- 
ally would  deplore  any  attempt  to  interfere  with  their  tradi- 
tional right  to  apply  for  justice  to  the  foot  of  the  throne. 

"In  other  colonies  the  right  continues  in  a  more  or  less 
complete  form— and  from  all  appearances  will  so  con- 
tinue while  the  British  Empire  itself  continues— and  may 
that  be  not  ad  tnultos  annos  done,  but  in  aeternum." 

Whatever  may  be  the  case  in  respect  of  private  liti- 
gation, it  seems  to  me  that  the  Judicial  Committee  will 
have  forever  the  task  of  determining  controversies  be- 
tween the  integral  parts  of  the  Empire. 


11  «L  '^mnMmmmaiaaKi^v^- 


^; 


ul 


i 


.\PPENDIX  B 

THE  HISTORY  OF  THF,  I'RIVY  COUN'CII.  AS  A  LEGAL  TRIBUNAL 

OR  COURT 


I: 


[Note:  After  the  reading  of  the  paper  ''Another  Supreme  Court,"  Mr. 
Justice  Riddell  was  requested  by  the  Association  to  supplement  the  paper  by 
an  account  of  the  history  of  the  Pri\y  Council  as  a  Court — the  followinR  is 
accordingly  furnished.) 

The  King's  Privy  Council  is  a  "  Common  Law"  body,  that  is,  it  was  formed 
by  a  process  of  evolution  when  the  common  law  of  England  was  in  the  making 
and  not  uuo  iclu  by  decree  of  Monarch  or  Act  of  Parliament. 

The  precise  origin  of  the  Privy  Council  is  of  little  importance,  historically  or 
otherwise:  we  know  that  l)efore  times  which  are  in  the  full  sense  historical 
the  King  could  not  see  to  it  personally  that  all  bis  subjects  had  justice  done  to 
them;  and  he  had  therefore  the  assistance  of  a  body  of  men  chosen  by  himself, 
a  Council. 

To  this  Council  was  entrusted  the  administration  of  justice;  in  course  of 
time,  formal  courts  were  formed  from  the  Council,  the  Courts  of  King's  Bench, 
of  Exchequer,  of  Common  Bench,  with  special  functions  and  apparatus  for  the 
performance  of  these  functions.  But  thereafter  there  remained  no  inconsid- 
erable part  of  the  original  jurisdiction  of  the  Council  unallotted  and  this  con- 
tinued to  be  the  case  on  the  crystallization  of  the  Court  of  Chancer>'.  'I  he 
Privy  Council  continued  frcm  time  to  time  to  exercise  "a  kind  of  extraordinary 
and  corrective  juris'iiction  to  pre>ent  violence,  corruption  or  intimidation; 
and  especially  combination  and  conspiracy  to  obstruct  or  prevent  the  course 
of  justice." 

This  was  the  case  before  the  creation  of  the  Court  of  Star  Chamber  in 
1487  by  3  Henrj-  VII,  c.  1,  the  name  of  the  Court  being  taken  from  the  Cham- 
ber wherein  the  Council  was  accustomed  to  sit — the  Court  of  Star  Chamber, 
as  Hallam  points  out,  was  in  fact  .■>  ^jdicial  Committee  of  the  Privy  Council. 

.After  ttie  statute,  the  Privy  Council  continued  to  sit  on  occasion  under  its 
original  Common  Law  jurisdiction  and  quite  independently  of  the  statute: 
but  most  of  the  business  was  done  in  the  statutory  court. 

The  Court  of  Star  Chamber  was  abolished  in  1640  by  the  act  15  Car.  I,  c. 
10,  which  provided  that  neither  the  King  nor  the  Privy  Council  should  have 
jurisdiction  over  the  estates  of  any  of  the  subjects  of  the  kingdom  but  that  all 
questions  respecting  the  same  should  be  tried  and  determined  by  the  ordinary 
course  of  law  in  the  ordinary  courts. 

348 


^< 


APPENDIX  B 


349 


But  this  Act  of  the  Long  ParlUment  dealt  only  with  subjects  of  the  King- 
dom and  not  at  all  with  subjects  of  the  King  in  territory  without  the  Kingdom: 
and  any  subject  in  a  dependency  had  still  his  right  to  apply  to  the  King  in  Coun- 
cil as  before.  Moreover  at  the  Common  Law  the  original  jurisdiction  to  decide 
cases  "relating  to  the  boundaries  between  provinces,  the  dominion  and  proprie- 
tary government  is  in  the  King  and  Council,"  as  Lord  Chancellor  Eldon  says 
in  the  famous  case  of  Penn  v.  Lord  Baltimore  (i  750)  1 1  Vesey  Sr.,  444  at  p.  446. 
This  jurisdiction  was  not  at  all  interfered  with  by  the  Act  of  1640. 

It  does  not  seem  to  be  quite  certain  when  appeals  came  first  to  the  Cou.xil 
from  non-English  territories  of  the  King  of  England;  but  apparently  it  is  prac- 
tically certain  that  they  came  from  the  Channel  Islands.  Until  the  seventeenth 
century  the  foreign  dependencies  were  not  of  great  importance;  but  in  hat 
century  appeals  are  found  coming  in;  and  in  1667  a  special  Judicial  Comr.  'ee 
was  formed  by  the  Privy  Council  from  its  members  to  deal  with  such  appeals. 
This  was  without  any  authority  from  Parliament,  for  none  was  needed,  the 
authority  of  the  Common  Law  being  sufficient. 

Mtet  the  Revolution  of  1688  the  appeals  began  to  increase,  and  in  1691  an 


order  was  passed  that  "all  appeals 
who  are  to  report  the  matters  so  he  - 
to  the  King  in  Council."    This 
over  appeals  from  the  supre  ne  coui 
century  Colonial  appeals  began  to  coi. 


heard  as  formerly  by  the  Committee 
them  and  with  their  opinion  thereon 
:ttee  for  Appeals"  had  jurisdiction 
:ie  Colonies.    Early  in  the  eighteenth 

in  in  considerable  numbers:  and  many 


most  important  matters  were  passed  upon  by  the  Committee. 

The  celebrated  Penn  v.  Lcra  Baltimo'e  case  already  referred  to  was  in  fact 
to  determine  the  rights  of  Pennsylvania  and  Maryland  over  part  of  the  present 
Delaware:  but  it  was  arranged  that  the  matter  should  be  tried  a^  ^  civil  suit 
in  Chancery:  this  was  done:  and  the  King  in  Council  made  an  order  in  ac- 
cordance with  Lord  Hardwicke's  decision.  But  this  case  can  not  be  cited  as  an 
instance  of  judicial  power. 

While  there  are  many  instances  of  the  decision  by  the  Committee  in  Colonial 
times  on  private  litigation,  I  am  not  aware  of  the  exercise  of  judicial  power  in 
any  public  controversy,  e.g.,  of  boundary,  etc.  (Mr.  Snow's  valuable  address 
at  the  first  meeting  of  this  Society  'hould  be  consulted.) 

Indian  appeals  stand  on  a  peculiar  footing:  the  right  to  appeal  was  first  given 
in  1773,  16  George  III,  c.  63.  Turning  now  to  another  jurisdiction  of  appeal  we 
note  that  orig'  ■■■■"'^-  within  England  appeals,  so  far  as  they  were  allowed  at 
ali  from  the  Cou.  ^s  of  Law,  went  to  the  Court  of  Elrror,  or  to  the  Lords — from 
the  admiralty  to  the  King  in  Chantery,  that  is  in  practice  lo  a  Court  of  Dele- 
gates and  from  the  Ecclesiastical  Court  to  the  Pope,  that  is  ir  practice  to 
Delegates  appointed  by  the  Pope.  After  the  Reformation  in  1532  (24  Henry 
8,  c.  12)  appeals  to  Rome  were  forbidden;  and  the  next  year  (25  Henry  8,  c. 
17)  it  was  provided  that  appeals  from  the  Archbishop's  Court  should  oe  to 
the  King  in  Chancery — he  appointed  Delegates  forming  a  High  Court  tf  Dele- 
gates to  hear  these  appeals. 


35° 


JUDICIAL   SETTLEMENT 


In  1831  (by  1  and  3  VVm.  4,  c.  92)  the  appeals  in  Ecclesiastical  matters  which 
since  the  Reformation  had  been  to  the  High  Court  of  Delegates,  as  well  as  ap- 
peals in  Admiralty  were  transferred  to  the  King  in  Council.  The  following 
year  the  statute  3  and  4  Wm.  4,  c.  4«  was  passed  which  regulated  the  constitu- 
tion of  the  Judicial  Committee  for  the  hearing  of  appeals— which  Committee 
v/as  to  consist  of  the  Lord  F.esident  of  the  Council,  the  Lord  Chancellor,  and 
such  members  of  the  Privy  Council  as  shall  hold  the  office  of  the  Lord  Keeper, 
First  Lord  Commissioner,  Lord  Chief  Justice,  Lord  Chief  Baron,  Master  of 
the  Rolls,  Vice-chancellor  of  England,  Judge  of  the  Prerogative  Court,  Judge 
of  the  Admiralty,  the  i  hief  Judge  in  Bankruptcy,  and  all  Priv)-  Councillors  who 
shall  have  held  any  of  these  offices— to  which  the  King  by  sign  manual  might 
at  any  time  add  two  other  Privy  Councillors. 

By  the  same  Statute  of  1833  it  was  provided  that  all  appeals  from  the  .Ad- 
miralty, Vice-.\dmiralty,  or  other  Courts  abroad  which  theretofore  had  lain 
to  the  High  Court  of  Admiralty  in  England  should  be  to  the  King  in  Council. 
By  the  .Act  of  1832  (2  and  3  Wm.  4,  c.  92)  the  appeals  which  in  Admiralty 
cases  had  from  even  before  the  2sth  Henry  8,  gone  to  the  King  in  Chancery  and 
so  were  heard  by  the  Court  of  Delegates,  were  transferred  to  the  King  in  Coun- 
cil. So  by  1833,  we  have  the  King  in  Council  vested  with  the  statutory  pow- 
ers of  hearing  Admiralty  and  Ecclesiastical  appeals,  and  still  continuing  to 
exercise  a  power  which  did  not  depend  upon  Statute  of  super\ising  the  pro- 
ceedings of  all  Courts  in  the  British  Dominions  not  within  the  four  seas.  All 
these  appeals— all  appeals  to  the  King  in  Council— were  to  be  referred  to  the 
Judicial  Committee  who  were  to  report  to  His  Majesty  in  Council.  By  this 
Act  two  ex-Judges  from  India  or  beyond  the  seas  were  also  provided  for. 
Further  Ecclesiastical  appeals  were  provided  for  in  1840  (3  and  4  \'ic.,  c.  86); 
this  act  also  got  rid  of  an  anomah— Ecclesiastical  appeals  could  theretofore 
have  been  heard  without  a  single  Bishop  or  Ecclesiastical  Judge  being  upon 
the  Committee— this  Act  provided  that  ever>-  Archbishop  and  Bishop  of  the 
United  Church  of  England  and  Ireland  who  should  tx  .  member  of  the  Privy 
Council  should  be  a  member  of  the  Committee  for  the  hearing  of  such  appeals 
and  one  at  least  be  present.  Another  llcclcsiastical  appeal  is  given  in  1874 
(37  and  38  Vic,  c.  85)  and  in  1846  (27  and  28  Vic,  c.  21)  an  appeal  is  given 
in  prize  cases.  In  1871  (34  and  35  \'ic.,  c  91)  provision  was  made  fur  four 
Judges  or  ex-Judges  of  the  Courts  at  Westminster  or  in  India  being  appointed. 
Then  came  the  Supreme  Court  of  Judicature  Act  of  1873,  whereby  all  .Ad- 
miralty appeals  were  taken  awaj-  from  the  Committee;  and  in  1876  the  pro- 
vision was  made  for  four  Lords  of  Appeal  in  ordinary  at  a  salary  of  £Sooo  each 
to  sit  in  the  House  of  Lords  and,  if  Privy  Councillors,  also  in  the  Judicial 
Committee. 

In  1877,  ,ill  jurisdiction  on  the  part  of  the  Queen  in  Council  in  matters  of 
appeal  from  Ireland  was  abolished.  In  i,Sq5  a  ver\'  important  proWsion  was 
made  that  any  Judge  or  ex-Judge  of  the  Supreme  Court  of  Canada  or  any 


'  V 


APPENDIX  B 


351 


Superior  Court  in  any  Province  of  Canada,  of  Australia,  New  Zealand,  Cape 
of  Good  Hope  or  Natal,  who  should  be  a  Privy  Councillor  should  also  be  a 
member  of  the  Judicial  Committee. 

At  the  present  time  this  Judicial  Committee  hears  appeals  in  English  cases 
only  in  Ecclesiastical  matters.  Upon  every  appeal  of  this  character,  at  least 
three  Bishops  must  sit  as  assessors,  under  the  provisions  of  a  rile  made  in  1876. 
The  ultimate  appeal  in  other  matters  goes  to  the  House  of  Lords.  In  Scottish 
and  Irish  matters  the  Committee  does  not  exercise  any  appellate  jurisdiction 
whatever. 

After  many  centuries  of  se'f-govemment  by  the  Privy  Council,  Parliament 
took  it  in  hand  to  constitute  the  Judicial  Committee  itself  in  1833  by  3  and  4 
Will.  IV  c.  41 ;  the  statute  directed  who  should  form  the  Committee,  the  ap- 
pointment of  a  Registrar  and  generally  laid  down  regulations.  Since  that  time 
the  Judicial  Committee  has  been  purely  statutory,  and  the  Privy  Council 
has  not  been  in  that  regard  imperium  in  imperio.  Most  of  the  subsequent 
legislation  deals  with  the  constitution  of  the  Judicial  Committee  and  is  not  of 
interest  to  Americans. 

Those  desiring  precise  information  mav  look  at  the  Statutes:  7  and  8  Vict., 
c.  69,  s.  9;  14  and  15  Vict.  c.  83,  s.  16;  39  .id  40  Vict.  c.  59,  ss.  6,  14;  44  and  45 
Vict.  c.  3;  so  and  51  Vict.  c.  70,  s.  4;  58  and  59  Vict.,  c.  44;  8  Ed.  VTI,  c.  51; 
3  and  4  Geo.  V,  c.  21. 

An  interesting  account  of  the  Court  of  Star  Chamber,  etc.,  will  be  found 
in  the  Introductions  to  two  volumes  of  the  Selden  Society  Sena  viz:  "Select 
Cases  before  the  King's  Council  in  the  Star  Chamber,  etc.,"  (1903),  Vol.  XVI, 
(i9io'>  Vol.  XXV,  in  which  the  motto  vtpl  iravrit  riv  iXfv0(piai>  is  hon- 
oured m  the  observance;  Anson's  "Law  and  Custom  of  the  Constitution"  has 
short  but  accurate  references;  Lord  Eustace  Percy's  "The  Privy  Council 
under  the  Tudors"  is  interesting  but  not  helpful  for  our  particular  purpose; 
Wood  Kenton's  pmmphlet  on  "The  Conditions  of  Appeal  from  the  Colonies  to 
the  Privy  Council"  is  valuable,  as  of  course  are  Pownall's  "Administration  of 
the  Colonies;"  Macqueen,  "Appellate  Jurisdiction  of  the  House  of  Lords  and 
of  the  Privy  Council,"  and  (the  second  edition  of)  Bowyer's  "Commentaries  on 
the  Constitutioral  Law  of  ICnlgand."  Dicey 's  "The  Privy  Council"  can 
scarcely  be  considered  worthy  of  that  very  eminent  legal  writer;  my  own  ad- 
dress before  the  Missouri  Bar  Association  will  be  found  in  the  .\merican  Law 
Record  for  1900,  and  no  one  can  ever  safely  neglect  Blackstone. 

WnjJAU  Renwick  Riodeu.. 


